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schliz writes "The Federal Court has ordered an Australian distributor to pay Nintendo over half a million dollars for selling the R4 mod chip, which allows users to circumvent technology protection measures in Nintendo's DS consoles. The distributor, RSJ IT Solutions, has been ordered to cease selling the chip through its gadgetgear.com.au site and any other sites it controls, as well as paying Nintendo $520,000 in damages."

The distributor advises consumers to use their modification devices for legal reasons only, such as playing legal copies of games from different regions

Wait, what? I thought handhelds (both the Gameboy Advance, Nintendo DS and PSP) weren't region-locked, but were in fact region-free. This allows people to play games from any region without having to resort to "chipping" their devices (which can often cause permanent damage). If the Nintendo DS is region-free, how could this be a legal purpose for this device? Or is it, in fact, region-locked?

This article seems rather flawed. R4 is a cartridge that takes micro-SDHC cards that could use homebrew applications on your DS. The DS is not region-locked whatsoever. They're evidently attempting to apply previous understanding of consoles to this one and falling rather short.

This is also not the only homebrew cartridge available for the DS, and by far not the best, but probably the most well known. I bought one so I could use emulators and DSLinux:)

But someone like MS would include a tricky license agreement with the product which says something like "By opening this box you agree that you did not actually purchase this hardware but are only leasing it indefinitely from Microsoft Corporation" blah blah blah which allows them to break it remotely or take it back from you if you harm it.

In the EU, at least, that's illegal.

They have a doctrine of customer rights or something (I can't recall what it's called) which actually stops a lot of the bullshit tha

Fair use statutes such as 17 USC 107 tell the judge what to look for when evaluating certain defenses to copyright infringement. Likewise, I'd imagine that the definition of "sale" and "lease" in commercial codes tell the judge what look for. But what do EU commercial codes say about this? If vehicle leases done in writing can last for three years or more, why can't leases of consumer electronics done in writing last for three years or more?

It's been a couple years since I researched this, and I think there's some benchmark that gets applied. I can't find the document that I read a while back, though. I think the main difference is if it is a sale/lease in actuality vs. a sale/lease in principle. You can't just call something a lease when it looks and smells like a sale.

There's also tough limits on things like EULAs, and other contracts where one party is not given an option to negotiate the terms.

I do agree (partially) with what you say in principle, but it's not quite that black and white. If you buy a gun you're not free to remove the serial number, nor are you free to fire it indiscriminantly into the air. If you buy a car you're not free to add a nitrous system to it if you want to drive it on the street. You buy a house you're not free to add a massive extension without permission. Life is full of these little rules that are there for good reason.

I think the gun comparison is interesting. You can legally buy a gun, but you're not allowed to shoot people with it (usually). Likewise, it should be okay to buy an R4, and illegal to use it for piracy. And there actually are valid reasons for owning an R4 [gamertell.com].

There are loads of DS card-readers out there that will let you run homebrew code. Even Datel made one. But the reason why they go after the R4 (and also the reason why the card is so popular in the first place) is because there are always updates so that the latest and greatest games work.Just downloaded a ROM that doesn't work? Head over to their website and download the latest firmware. Now tell me they're not about Piracy.

So GP posts to a site about a homebrew/indie game to give an example of a reason to legitimately own an R4 (or similar device) and you come back with "The R4 used entirely for counterfeiting and piracy?"

Do you work for Nintendo's PR department, or are you just functionally illiterate? And if there is a legitimate use (even if it is, as you claim "Very little") then why the hell would those who use it as such NOT cry foul at the sale of the device being banned?

I tried the SNES emulator on the thing, with ROMs of those games (pre-dumped -- not pretentious enough to build or buy my own dumper)

Then technically, you've used your R4 for piracy. If you dump your own Super NES Game Paks (which will become easier once Retrode is out), you're protected under 17 USC 117 and foreign counterparts. But if you obtained bit-identical files over the Internet, then you've copied the copyrighted code libraries written and licensed by Nintendo for use in Super NES games without authorization. Unlike patent and trademark law, copyright law cares [sooke.bc.ca] about the provenance [wikipedia.org] of a copy.

If you dump your own Super NES Game Paks (which will become easier once Retrode is out), you're protected under 17 USC 117 and foreign counterparts. But if you obtained bit-identical files over the Internet, then you've copied the copyrighted code libraries written and licensed by Nintendo for use in Super NES games without authorization.

Actually, a US Federal judge just recently suggested that if the only items that a defendant had "pirated" were items that he already owned a license for, that she would b

Actually, a US Federal judge just recently suggested that if the only items that a defendant had "pirated" were items that he already owned a license for, that she would be willing to listen to a Fair Use argument on that

I don't buy it. Nothing in that exceedingly verbose article you linked to cites any law or case law relevant to copyright. 17 USC 117 however, reads "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy".

So if I own a copy of Super Mario Bros. (a computer program) it is not an infringement for me to make another copy of Super Mario Bros. If I download a smb.nes, then I have made a copy of Super Mario Bros. Providing that I only use it

[If you dump your own cart, you're OK under US law.] But if you obtained bit-identical files over the Internet, then you've copied the copyrighted code libraries written and licensed by Nintendo for use in Super NES games without authorization.

I don't buy it.

Judge Rakoff bought it in 2000. Please see my other reply [slashdot.org].

Nor is the background music in a video game, if you want to argue that way. I imagine that the applicability of fair use to space-shifting a major label video game is complex enough that I don't have the cash to pay a lawyer to argue to a judge one way or the other.

I know three people that have them and none of them use it for anything except playing downloaded ROMs.

Then I take it you don't know me. I don't pirate DS games on my R4. I run homebrew apps such as MoonShell, DSOrganize, Colors!, and Lockjaw. I have played pirated MP3s on it, but I don't think Nintendo has the standing to sue on behalf of (say) its competitor Sony.

You're right, I don't know you. Apparently you missed my point. People like yourself are the minority. Therefore Nintendo are obviously going to be gunning for anyone selling or making the R4 to prevent it from being used for piracy, which in the majority of cases it's going to be. Yeah it's a shame that that screws homebrewers like yourself, but is it really that much of a surprise that this has happened?

Everything you say has laws about that. When I brought my R4 and installed only hombrew on it (this is not hypothetical BTW) what law did I break? Is the Precrime bureau going to nab me for potential piracy? More importantly, what crime did the distributor commit?

Well I totally agree with you on this. Legitimate homebrew is a totally valid use of a piece of hardware, and should be encouraged. It's just an unfortunate thing that enabling homebrew usually also opens the door for piracy. Some decent API's and a support system from Nintendo would help them, and homebrewers, by eliminating the "I was just doing homebrew" argument from real pirates. For once Microsoft actually have the right idea (sort of) with this, and their efforts to allow people to make their own gam

If I buy object "a", and create useful additions to that object, I bloody well should be able to profit from it.

If the leased me the DS then it would be a different matter. But I purchased it, so I shouldn't be considered a criminal if I hack it, paint it, blow it up, whatever. It's now mine, and my business what I do with it.

If I buy object "a", and create useful additions to that object, I bloody well should be able to profit from it.

I hope you don't mean that. If your rights interfere in a corporation's ability to make money in even a theoretical, possible, not necessarily plausible way, you no longer have any more rights. Now, if you were a multi-billion dollar corporation, then okay, your statement is accurate.

I'm not entirely up to speed on the whole thing, but I think that that mentality (which frankly is pretty stuck on itself in the first place) is upset when the company provides a service, such as online play; if your unauthorized additions may cause tremendous upset in online play, such as by allowing hacking in online play, then those people are detrimental to the future of your platform, not merely game sales.

You see it a lot in online games on the PC; in order to prevent cheating on multiplayer, they hav

obviously with things that can be copied, you shouldn't be allowed to sell or give it away more than once without permission. hence copyright being a right to copy.but physical stuffs, great. I should be able to buy a lawnmower, bore out the engine and add a turbo charger, and sell it. or sell a kit to extend your lawn mower into a string trimmer(weed wacker), even if the company that makes the lawn mowers also makes string

Yeah, thats the legal protection most mod chip providers use in Australia.
I got myself through uni by modding consoles and working helpdesk. I never touched a region free console like the DS or PSP, for this exact reason.

Homebrew software is a major component. Before you laugh, I'll affirm that pretty much the only reason I modded my original Xbox was for running homebrew software - most specifically XBMC. I've since switched to using Boxee running on an AppleTV, but there are people who will want to run homebrew software on their devices, and on a video game system that usually requires a mod-chip.

This nonsense is why I never used an xbox as an HTPC. Although I used a hacked AppleTV in this capacity for awhile.

Then cheaper, open, PC hardware surpassed both of those "consoles".

Still, being able to do what I want with those physical things that I owncan be very handy and can add value to "appliances". The notion that youassume by default that such hacks are only for piracy is fundementalyanti-democratic.

I have an R4 which I use to load my own code to the DS. I never used it to play pirated ROMs. The R4 does have legitimate uses as a development tool.

From my experience you are probably amongst the exceptions. I always find it odd that while the DS is one of the biggest selling consoles and ranks high in sales charts, its games don't - I don't whether this is due to the impact of the R4 or some other factor that I am not taking into consideration.

There's a couple of reasons. First, homebrew. You can use your DS as a decent MP3 player, or even video player (with transcoding). There are also apps to take notes, read ebooks, etc. etc. There's even a handy scrabble dictionary, and some homebrew games available. (Amazingly, Quake runs pretty well on the DS.) A French court recently ruled that flash carts were legal [engadget.com] for homebrew purposes.

There's also convenience. It's just easier to carry one card with your entire collection of DS games instead of juggling a dozen carts when you travel.

Modding consoles, selling chips to mod consoles and selling services to mod consoles have been deemed legal in Australia in the past due to the justification that they allow you to play backed up versions of games you've legally bought. Of course this is a valid reason to want to mod a console, but its also a "nudge nudge, wink wink" situation as the people who would actually mod their console only for playing backed up versions of their game would be in the extreme minority.

But this bullshit justification has always been enough in the past to stop people from facing the consequences of selling chips to get around DRM in consoles. So how come the excuse didn't work this time? Is it because its a civil trial? I understand the burden of proof is much less in civil, but if this was a successful avenue for corporations to take, I'm sure Sony would have done it years ago with the original Playstation. Did the defendants in this case mess up and get caught actively encouraging people to use their chip to pirate games?

I RTFA, but it was completely silent on how Nintendo managed to win this court case.

Given I'm talking about the original playstation (which is when I heard about this legal loophole that allowed stores to openly selling their services to chip playstations) and the PS2 came out in 2000, I'm going to assume it happened before the free trade agreement;) (I don't remember the exact date I saw stores openly selling playstation modding services, but I do remember being quite surprised and either seeing something about it on the news or looking it up on the internet).

That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

That said don't misconstrue this as to have any actual sympathy for people selling devices to get around copyright protection. I understand that these devices can be used for homebrewing. And I'll support the first to support any company that actually tries to make a business out of homebrewing for the Nintendo DS. But first that company will have to do a pretty damn good job convincing me they really are trying to make a business out of homebrewing and aren't using it as a legal pretext to allow people to pirate DS games.

There is no business in homebrewing on the DS. But as someone who's spent a substantial amount of time in tinkering with the DS, let me reassure you that it's a lot of FUN! (Warning: your definition of FUN may vary). By todays standards you've got a very limited amount of room to do your work in and you have to make the most out of it, and most of the code you write is going to be really close to the hardware. If you're remotely interested in this sort of thing (even if you're not going to write a game), the DS is a pretty cheap ARM platform for all the hardware that's in it:

two small screens, addressable through several memory banks, with several modes of operation (including a rudimentary OpenGL like 3D API on one of the screens)

a touch screen interface

wifi

sound output via speakers and input via microphone

The DSi even has two cameras onboard, but I don't think they're supported by libnds [devkitpro.org] yet.

Oh, and of course, very interesting is that a lot of people have made the source code for their homebrew games available. Sometimes you'll just go and have a peek at how someone else did something, and discover something really ingenious, often optimized to give the best performance given the limited hardware available.

But let's face the fact, without Nintendos official seal of approval (read: a wheelbarrow of cash and a reputable game-company backing it) there will never be any real money in whatever you're going to code. If you want to do something commercially, you'll have to buy Nintendos tools, etc. If tinkering with a piece of hardware you buy is going to make you a criminal, I fear for the next generation of geeks.

After 17 weeks of trying and failing to get Nintendo to provide Pelloni with the SDK, on December 11, 2008, he decided to publicly protest to Nintendo by locking himself in his room for 100 days or until they provided him with the SDK, whichever came first.

But how much does it cost to create that data? Can one recover the cost of creating this data from donations alone?

Unless you're using big and small to mean something other than data size...

By "big" I meant scope and production budget, not data size. For example, there are simple little Flash games on Newgrounds.com whose data is larger than 384 KiB, but Super Mario Bros. 3 is still a "bigger" game than those. Please allow me to rephrase:

So if a project's scope is too big for distribution as homebrew freeware but too small for a retail release through official channels, such as

Yeah, that trade agreement hurt. As I'm sure the parent poster knows, but for others: Prime minister (at the time) Howard had to get us a trade deal with the US basically to show the Australian voting public that the whole joining America on Iraq was worth it as it was an unpopular move.

The trade talks were going badly and at the last minute Howard made the executive decision to give in to a lot of US demands and take the hit. Showing the public that we had a US trade agreement seemed more important than sh

1. Australian law allows importing of content from overseas and circumvention of "region locking".

2. The courts accepted the argument that the law said you can't work around devices designed "to prevent or inhibit the infringement of copyright" and modchips only allowed playing copies not making copies. Playing a copy isn't copyright infringement, making the copy is so there was no "protection measure" involved and so the law against circumventing th

Every single DSi-compatible DS cart, including Datel's Action Replay DSi [hackmii.com], includes portions of a pirated cart ROM. Nintendo started signing all executables and retroactively signing the existing library of DS games (they include the hashes built in to the DSi firmware), so the only way you can get an unofficial DS cart to run on the DSi is by pirating a game's executable/header and partial data and then using a data file exploit (data files aren't signed) to make it bootstrap your code. These DSi-compatible cartridges even show up with the game icon of a real game in the menu, since that part is also signed.

Nintendo started signing all executables and retroactively signing the existing library of DS games (they include the hashes built in to the DSi firmware), so the only way you can get an unofficial DS cart to run on the DSi is by pirating a game's executable/header and partial data and then using a data file exploit (data files aren't signed) to make it bootstrap your code.

In the USA this is not lawsuit fodder because of Sega v. Accolade. In Australia, you're still screwed.

Not necessarily. Sega v. Accolade was about copying code for reverse engineering (which is an entirely separate issue, and something that plenty of people are "guilty" of these days), and the trademark issue for consoles that require a trademark to boot (like the Nintendo logo required for GB/GBC/GBA games to boot). The only code copied in the end product was that required to show the trademark, which can probably be regarded as non-copyrightable or fair use (the only issue being the actual trademark displa

This is different, as the end product doesn't just incorporate a trademark or code that shows a trademark, but rather almost a megabyte of a game. That falls under copyright infringement, not trademark misuse.

Sega v. Accolade didn't make a distinction based on the type or quantity of content. It simply stated that if you have to include the magical secret code for the game to function, you may include it. So far, that case has held up and/or not been challenged even in the face of the DMCA and its clauses about defeating a copy protection mechanism, so I figure it's probably pretty secure here too.

IANAL, but in my opinion a whole different case would be needed to establish whether copying a large amount of code/assets/whatever can be regarded as fair use if it is a requirement to be able to run unlicensed original code.

IANAL either, but; I agree that a whole different case would be needed, but there's already ample provocation to bring one if "they" think they can win. This hasn't happened, so I suspect that the lawyers don't agree with your assessment that it's clear infringement.

This is a long way from just showing a SEGA or Nintendo trademark.

The trademark was included in the code, not shown. The trademark display was a Dreamcast thing and came dramatically later. Go read up on SvA on Wikipedia please.

Sega v. Accolade didn't make a distinction based on the type or quantity of content.

Sure it did. As I said, there are two parts to the lawsuit: reverse engineering SEGA games in order to write your own, and copying the SEGA trademark as required for the console to boot. Part 1 doesn't apply here, because the game's code was not copied in order to write the ARDSi code - rather, it was copied because it's essentially a requirement for the console to boot. The distinction is that the lawsuit only relates to tr

That one's certainly interesting. There are a few key differences there (55 bytes versus a megabyte, purely functional code for the toner crypto vs. an actual creative game, and consumable goods vs. nonconsumable cartridges), but some of the things the judges said do make me wonder. It would certainly be interesting if this ever got tested in court. Particularly, a comment by one of the judges is pretty favorable:

I write separately to emphasize that our holding should not be limited to the narrow facts surr

Didn't the original Gameboy require the Nintendo logo to be in the cartridge? If you turned it on without a cartridge, a black rectangle would scroll up the screen instead of the logo.

Yup, though you can use a "smart" cartridge to trick the gameboy by alternately "showing" it the real logo and your own logo (enable the real logo when it checks it, enable your logo while it copies it to the screen). This also worked (in a more complex way) for the gameboy pocket, color, and the super gameboy, though I don't

I don't know much about copyright law in Australia, but at least in the United States, an argument from a copyrighted boot sector doesn't hold legal water, not even after the DMCA. See Sega v. Accolade and Lexmark v. Static Control Components.

The AR DSi comes with the ROM (obfuscated inside internal flash), presumably because they don't expect users of a cheating device to go out hunting for warez. The makers of piracy cartridges probably assume their users are capable of such a feat - ironically, rendering the piracy carts more legal than the AR DSi, since they don't actually come with the ROM.

Not in the traditional sense, no. A mod chip is usually used to describe something that is attatched (either permanently or temporarily) to the physical board of a device. The R4 is known as a "flash cart"...it looks exactly like a regular Nintendo DS game cartridge, except there is a port on it to put a MicroSD card loaded with roms on it. There is no internal modification to the DS needed for the R4 to be used.

Read more about it here. [wikipedia.org] The picture of the cart you see at the top of that article isn't an

I own several, and I've always called them "mod chips" because it contains a "chip" and it modifies the function of the device. I suppose then someone could call any DS game a "mod chip" by my definition. But "flash cart" doesn't seem right since all games are flash carts too.

Given the choice, "mod chip" better describes what it does. So until a new term arises, I'll stick with that.

That's just it though, it doesn't modify the functionality of the internal hardware in any way...as far as the DS knows, a normal game cartridge has been loaded into the cartridge slot. That's why you can use it without modifying the DS handheld.

It's not, no. It's just a cart with a microsd slot and the necessary electronics to convince the DS that the storage on that card represents a DS ROM. It's a modchip in the same way that a CF -> IDE adapter is a "modchip" for your computer.

You should be allowed to do what ever you want to your system. Are they going to sue me for putting a mod chip in my Game Cube? Modding my SNES? Even modding my Gameboy. If you paid for the system you can do what you want to it.

It's funny now to go back and look at "Mad Max" and realize that the premise of that movie was that the future of Australia would involve too much lawlessness and a lack of legal enforcement (criminals going free, no law to protect citizens, etc.). Now here we are in the actual future and Australia of late is looking at actively censoring the internet, banning any videogame that shows blood, imposing criminal and civil sanctions on people for modding their videogame consoles, and even banning criticism of lawmakers. It seems that the Australia of 2010 turned out to be more of a police state than a free-wheeling lawless anarchy. Turns Tina Turner was right. We didn't really need Max at all.

I wrote a fairly popular DS app a few years ago, but I saw the writing on the wall for this platform. Between Nintendo making it harder to get these chips, and cell phones becoming more open, I don't see much point in writing for the DS. It's a shame: I think Nintendo could be where Apple is today with the iPhone, had they opened the DS. It had so much potential. Now, it is simply out of date.

While in the long run it should be ethical to mod a piece of hardware you bought yourself, I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

Then add tepples as #17 and replace "None" with "One". The microSD card that I used with my R4 back when I was still into DS includes MoonShell, DSOrganize, Colors!, Lockjaw, and a couple saved game management utilities, but no pirated DS games.

As #2, let me add PuzzleManiak, ScummVM (all legal games I have CDs for, plus Beneath a Steel Sky), Video Games Hero, DiceWars, DScent and AmplituDS. I also have physical copies of six DS games, which I loaded most of them on to pick and choose from when on the go.

For commercial games, I either pay for it, find a freeware/OSS equivalent, or just play something else. I don't need to, nor desire to pirate games and it does gall me to hear all the experts here ignorantly stating that "everyone who has an R4

While in the long run it should be ethical to mod a piece of hardware you bought yourself, I gotta admit I can list off about 16 people who all own DS's and Modchips, and half of them have yet to pay for a legal copy of a game for the DS. The other half run *mostly* modded games. None of them use the R4 for any legal 3rd party applications.

Same here. Even my fellow computer science friends that have flash carts use them almost entirely for pirating games. I have read on this page that there are some people who don't use the flash cart for pirating games but not pirating is very much the minority.

There would be very little demand for the flash carts if they were only used simply for homebrew.

Call me an ethical egoist but I've avoided buying myself a flash cart simply because of the piracy associated with it. I do not think that Nintendo mad

Y'know, I was actually thinking about getting a DS, but now that I can't load up emulators for older systems (like my GameBoy Pocket) or homebrew games, I might have to get a PSP. It seems you can't have both a system that's well known for a good library of games, popular, and a system that's open to homebrew (officially or otherwise) in the same package. Of course, there's Windows, I guess - but I'm tired of dealing with all of the slight-little driver issues to full blown failures of my computer and such

You don't really want a DS for emulators anyway, not other than GB/GBC. The screen resolution is so small that even NES games have to be scaled down. The best genesis emulator does run quite fast, but it doesn't scale horizontally which can be a big problem if you're playing Thunderforce IV. Those cropped columns can easily be the difference between seeing forward enough to react or dying.

The PSP is pretty nifty. You even get PSX hardware emulation. The DS does have a better library of games, but there

i don't care if 99% use something for piracy, the other 1% should never be affected. i should be allowed to tinker with whatever i buy, and if i can do something myself, i should be able to pay someone else to do it for me, whether it be modding my own hardware(or am i licensing the hardware?) or archiving my legally purchased media to whatever format i choose(seeing as i am allowed to record and archive content off the tv, why can't i use the internet as a dvr?).
what's even more ridiculous is the bullshit development licensing consoles have in the first place. anyone for that system, would have to be for development licensing fees on windows, linux, mac, etc. they are all computers ffs!

Wasn't the concepts of First Sale Doctrine (which is hardly an American in origin) supposed to protect against this Digital Pesantry? Next thing you know Pepsi will be suing people for improperly drinking their soda due to EULA viloations (Must be served cold in a Pepsi branded glass with 6.8 ounces of ice per 1/5th litre of soda.)

There is nothing now preventing ANY manufacturer prohibiting any non-sanctions periphrials. Nope you can only use SONY headphones with our Sony Walkmans, you can only use Ford ma

Depending on the system, definitions can be found outside of the actual legal text. In some systems there is extensive documentation outside of the actual legal text, often based on the prepatory work that was conducted before passing the law. In other systems definitions and specifics are left to the courts, while in other systems the legal texts are extremely detailed.

All of the above systems have their pro's and their con's, but to my knowledge there are very few modern legal systems where you would e

But by that logic, couldn't you simply state that the entire system is a technical protection measure, and that by using anything with it that is unlicensed by $company is suddenly breaking the law? That seems to be what happened here.